That has been the fundamental question in the debate over abortion for years and a topic of considerable discussion in the state Legislature this session. It is key to a bill by Sen. Jason Rapert, R-Conway, whose measure proposes to define life as beginning when a fetal heartbeat can be detected and make abortion illegal after 12 weeks of pregnancy, which generally is the point doctors can detect a fetal heartbeat using ultrasound.

Senate Bill 134 would create one of the most restrictive state laws limiting abortion in the country.

Rapert’s bill defines viability as “a medical condition that begins with a detectable fetal heartbeat.” The U.S. Supreme Court’s definition is the point at which a child is “potentially able to live outside the mother’s womb.” That was assessed to be about 24 weeks, although the court scaled that back to 22 weeks in a 1992 ruling (Planned Parenthood v. Casey).

Rapert’s bill appears headed for legislative passage but may hit a wall when it arrives at the governor’s desk. Gov. Mike Beebe has indicated he is not sold on it.

“Rapert’s bill appears to be patently unconstitutional. That means it’s got problems; that means it’s got problems with me,” Beebe said last week.

Attorney General Dustin McDaniel also has expressed concerns over the constitutionality of the bill. It is notable that McDaniel has been less visible on the issue than in the past. In the session two years ago, he sent a deputy attorney general to testify against a similar bill in committee. This year, facing the likelihood he may have to defend the law in court, he primarily has expressed his concerns privately to lawmakers.

Even those of us from the pro-life perspective would be disingenuous if we did not admit that constitutional concerns may have some degree of merit. Liberal groups such as the American Civil Liberties Union already have said they will challenge the law if enacted.

The ACLU is challenging an Arizona statute that declares viability at 18 weeks.

That does not mean Arkansas lawmakers should shy away from a court battle. In fact, the court has been the battlefield for the abortion issue the last 40 years.

Abortion became a bigger issue when the Supreme Court chose to take the power away from the legislative branch. In Roe v. Wade, the court inexplicably discovered the constitutional right to an abortion up to viability somewhere in the Fourteenth Amendment to the U.S. Constitution — that coming over 100 years after it was written. Prior to the decision, the power to legalize or ban abortion was in the hands of states, whose laws varied. Now state legislatures have to go through a trial-and-error process to see what the court deems acceptable.

So, if the primary criticism of the heartbeat bill is that it will force the state to defend it in court, that is not a criticism at all. For pro-lifers who want to see abortion made illegal, the only way to accomplish that is by reversing Roe v. Wade, in whole or in part.

There are two ways to accomplish change. One is with a constitutional amendment that would prohibit abortion, which is not really even being discussed in any organized manner.

The other is to push back against the ruling is in court. That has been the strategy of pro-life groups since the 1973 decision. State legislatures in pro-life-leaning states continue to pass restrictions that get challenged in court in an attempt to steadily chip away at abortion rights.

Like it or not, the court is where the battle over abortion rests.

Jason Tolbert is an accountant and conservative political blogger. His blog — The Tolbert Report — is linked at ArkansasNews.com. His email is jason@TolbertReport.com.

I strongly disagree with Mr Rapert's bill. Many times it takes almost 12 before a woman knows she is pregnant - 2 missed periods. This zygote is not a viable human being. When a woman is pregnant she refers to "expecting a baby". I side with the Supreme Court on this one. A woman should not have to have a medical procedure that she does not want to have a legal abortion. It is her body.